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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Grafton

No. 98-129

HANOVER INVESTMENT CORPORATION

v.

TOWN OF HANOVER

November 15, 2000

Clauson & Atwood, of Hanover (K. William Clauson on the
brief and orally), for the plaintiff.

Gardner & Fulton, of Lebanon (Adele M. Fulton on the
brief), and Donahue, Tucker & Ciandella, of Exeter (John J. Ratigan on
the brief and orally), for the defendant.

BRODERICK, J. The plaintiff, Hanover Investment Corporation (HIC), was
denied a real estate tax abatement by the defendant, the Town of Hanover (town). HIC
successfully appealed to the Superior Court (Smith, J.). The town now appeals to
this court and HIC cross-appeals. We affirm in part, reverse in part, and remand.

HIC applied for an abatement of the town's 1993 tax assessments of its
eighteen commercial properties. The town asserted that the properties had an aggregate
fair market value of $5,694,673 and rejected the plaintiff's abatement request.

After filing an appeal in the superior court, the plaintiff hired Ricard
Associates in late 1994 to appraise the disputed properties. Their appraisal valued the
real estate at $3,519,000, and the firm's $27,000 fee was paid in June 1996. Shortly
before trial in October 1997, Douglas Ricard agreed, despite the absence of any underlying
contractual obligation, to provide expert testimony for no additional compensation.

Ricard was appointed to the New Hampshire Board of Tax and Land Appeals
(board) in September 1996, and reappointed to a five-year term in October 1997. Upon
learning that Ricard was a member of the board, the town sought to disqualify him from
testifying in the case. The trial court denied the town's motion, concluding that RSA
71-B:1 (Supp. 1999), which prohibits employment by board members that conflicts with their
official duties, did not apply because Ricard was not paid to testify and, hence, was not
"employed." The court also reasoned that RSA 71-B:6, II (1991), which prohibits
board members from providing expert testimony for any party before the board, was not
violated because the appeal was filed in the superior court. Finally, the trial court
ruled that Ricard's proposed testimony did not compromise the guarantee of Part I, Article
35 of the New Hampshire Constitution mandating judges "as impartial as the lot of
humanity will admit" because he had no adjudicatory role in the disposition of the
appeal.

During trial, the court issued an order suasponte conceding
that it "may have made an error in ruling on certain requests made by . . . the
[town]." The order recited:

The appeal taken by the plaintiff in this matter is for the tax year
beginning April 1, 1993. RSA 76:17 [-]c [Supp. 1999] gives the winner the benefit of
future tax years. In this case, it would be limited to 1994 and 1995. Although this Court
has admitted evidence of value for the years 1994 and 1995, the decision of the Court will
be made based upon fair market value for the tax year beginning April 1, 1993 only. Any
evidence of value offered beyond April 1, 1993 will be given the weight that it deserves,
but will not be binding.

The plaintiff filed a post-trial motion to clarify this order, arguing
that the court erroneously limited the future effect of its decision to the two subsequent
tax years rather than extending it to all tax years between 1994 and 1997. The motion was
denied.

On appeal, the town argues that the trial court erred in allowing Ricard
to testify as an expert witness in violation of RSA 71-B:1 when he had an employment
relationship with the plaintiff, and that his employment compromised its constitutional
right to a trial before an impartial judicial officer. The town also asserts that the
court erred by excluding all evidence of valuation for the plaintiff's properties for tax
years subsequent to 1993. The plaintiff cross-appeals, contending that the trial court
should have applied the corrected 1993 valuation of its properties to all subsequent tax
years, as required by RSA 76:17-c.

I

We first address whether Ricard's testimony was prohibited by either RSA
71-B:1 or the State Constitution. "[T]his court is the final arbiter of the intent of
the legislature as expressed in the words of the statute." Appeal of NH Dept. of
Transportation, 144 N.H. , , 744 A.2d 1128, 1129 (1999) (quotation omitted). "Our
analysis must start with consideration of the plain meaning of the relevant statutes,
construing them, where reasonably possible, to effectuate their underlying policies."
Nashua School Dist. v. State, 140 N.H. 457, 458, 667 A.2d 1036, 1038 (1995)
(citation omitted).

RSA 71-B:1 provides, in pertinent part:

There is hereby established a board of tax and land appeals, hereinafter
referred to as the board . . . . The members of the board shall be full-time employees and
shall not engage in any other employment during their terms that is in conflict with their
duties as members of the board.

The statute makes clear that board members are prohibited from engaging
"in any other employment during their terms" that conflicts with their official
duties.

In this case, we agree with the trial court that Ricard did not violate
RSA 71-B:1 by offering expert testimony in the superior court because he was not employed
to do so. See BLACK'S LAW DICTIONARY 525 (6th ed. 1990) (term "employed"
signifies "both the act of doing a thing and . . . being under contract. . . to do
it"). At the time Ricard agreed to testify, he had fully discharged his contractual
obligation and had been fully compensated. He had no express or implied obligation to
testify, and he elected to do so at no charge. He could not have been forced to testify,
nor would he have been subject to any claim of breach for failure to do so.

While it is arguably true, as the town suggests, that by testifying Ricard
created a conflict with his official duties because he would be required to recuse himself
from pending and future cases before the board involving the town, see RSA 71-B:5
(Supp. 1995) (amended 1999) (board has duty to hear and resolve all matters
regarding taxation and equalization issues), the applicable statute is written in the
conjunctive. A conflict by itself, not generated by employment, is insufficient to
disqualify Ricard from testifying.

We also affirm the trial court's ruling that allowing Ricard to testify
would not violate the defendant's constitutional right to try its case before an impartial
tribunal because the case was tried in the superior court without any actual or potential
involvement by the board. When the plaintiff appealed the town's denial of its tax
abatement application to the superior court, it effectively foreclosed any involvement by
the board. See RSA 71-B:11 (1991). Ricard's testimony before the superior court
would in no way taint the impartiality of the presiding judge.

II

We turn next to the plaintiff's argument that the trial court erred by
applying its valuation determination to only the 1994 and 1995 tax years, and not to
subsequent years.

RSA 76:17-c provides, in pertinent part:

I. Whenever the . . . superior court, pursuant to RSA 76:17, grants an
abatement on the grounds of an incorrect property assessment value, the . . . assessors
shall thereafter use the correct assessment value, as found by the board or the court, in
assessing subsequent taxes upon that property, until such time as they, in good faith,
reappraise the property pursuant to RSA 75:8 due to changes in value, or until there is a
general reassessment in the municipality.

II. If, while an appeal pursuant to RSA . . . 76:17 is pending, subsequent
taxes are assessed using an assessment value later found to be incorrect by the. . .
superior court, the selectmen or assessors shall abate such subsequent taxes, using the
correct assessment value as found by the . . . court, even if no abatement request or
appeal has ever been filed with respect to such subsequent taxes.

RSA 76:17-c is intended to remedy the "mischief" created by
backlogs in courts with jurisdiction to hear appeals of property tax assessments. SeeAppeal of Town of Newmarket, 140 N.H. 279, 283, 665 A.2d 1088, 1091-92 (1995).
Generally, "[p]ursuant to RSA 76:17-c, II, if the superior court determines that an
assessment is incorrect, the town [must] abate taxes assessed for years following the
incorrect assessment even if the taxpayer did not appeal those taxes." Sprague
Energy Corp. v. Town of Newington, 142 N.H. 804, 806, 710 A.2d 1005, 1006 (1998). The
trial court may not, however, apply the corrected assessment to tax years subsequent to
either reappraisal of the plaintiff's property pursuant to RSA 75:8, or a general
municipal reassessment. Seeid. at 807, 710 A.2d at 1007; RSA 76:17-c, I.

The town in this case performed neither a reappraisal of the plaintiff's
property nor a general reassessment in the town between 1993 and 1997. Accordingly, we
hold that the corrected assessment value applies to all years between 1993 and 1997. See
RSA 76:17-c. The town argues that the trial court did not err in restricting the
application of the corrected assessment to the 1994 and 1995 tax years because the
plaintiff's purchase of additional property in 1995 and 1996 resulted in "an RSA 75:8
revised inventory of properties" owned by the plaintiff. This argument is without
merit. The plain language of RSA 76:17-c requires the trial court to apply the corrected
assessment to all subsequent tax years until a reappraisal or general reassessment is
conducted. Because no such intervening act was undertaken by the town in this case, the
corrected assessment as determined by the trial court applies to all subsequent tax years.
SeeSprague Energy Corp., 142 N.H. at 806, 710 A.2d at 1006.

III

Finally, we address the town's argument that the trial court erred in
limiting the relevance of evidence it offered on the valuation of the plaintiff's property
after April 1993, and not allowing such evidence to be weighed with respect to subsequent
years. Because subsequent tax years are subject to abatement and correction pursuant to
RSA 76:17-c, the town argues, we should interpret RSA 76:17-c to permit a party to
introduce evidence as to any assessment year subject to correction.

The town's argument is without merit. The only issue in this case was the
value of the plaintiff's property during the 1993 tax year. The court did not abuse its
discretion by receiving evidence of value for tax years 1994 and 1995 but only according
it such weight as it deserved. SeeState v. Naughton, 139 N.H. 73, 77, 650
A.2d 327, 330 (1994). The town contends that it is unfair to limit the issue to the value
of the plaintiff's property during the 1993 tax year because the value of the plaintiff's
property may have increased during the pendency of its appeal. If the town believed that
the plaintiff's property increased in value during tax years after 1993, it was obligated
to reappraise the property pursuant to RSA 75:8.

THAYER, J., sat for oral argument but resigned prior to the final vote;
BROCK, C.J., and HORTON, J., concurred; NADEAU and DALIANIS, JJ., who took part in the
final vote by consent of the parties, concurred.